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Petitioner: Mrs. AFROZ SHAH and others VS Respondent: SABIR QURESHI and others
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Sair Ali, Shakirullah Jan Title: Mrs. AFROZ SHAH and others vs SABIR QURESHI and others Case No.: Civil Petition No,29 of 2009 Date of Judgment:2010-06-03 Reported As: PLD 2010 Supreme Court 913 Result: Order accordingly
Judgment ORDER ' MUHAMMAD SAIR ALI, J.---The questions that arise for determination in this case are as under:-- (i) Whether the respondents-plaintiffs had an absolute/unqualified right to seek unconditional withdrawal of their suit under sub-rule (1) of Rule (1) of Order XXIII, C.P.C. When similarly positioned and circumstanced petitioners-defendants, along with the plaintiffs, also claimed equal rights in the suit property through inheritance as LRs of the deceased; (ii) Whether the Court could and should have declined the request for unconditional withdrawal of the suit by the respondent-plaintiffs in the circumstances of this case; and (iii) Should the petitioners before this Court, who were defendants in the suit, have been and be interposed as the plaintiffs in the suit, being LRs of the original deceased plaintiff, like respondents Nos.1 to 8. 2. The circumstances and facts in which the above questions arose, are by and large undisputed. Ninety nine years lease for land measuring 250 acres was granted to Mr. A.M. Qureshi, i,e, an educationist (now deceased), for constructing, setting up and operating a non-profit public school etc. On the leased land through order dated 10-10-1963 of the Deputy Commissioner. This land (measuring 250 Acres) was situated in Class No,21, Scheme 33, Sector 34-A, 35-A and 36-A/3, Deh Dozan, Taluka and District East now Malir, Karachi. The physical possession of the land was handed over the lessee/allottee. The Sanad of Lease was issued on 14-1-1965. On 7-1-1976, the Deputy Commissioner cancelled the lease of the said land. After some proceedings before the Revenue Authorities, Mr. A. M. Qureshi (the original plaintiff) on 20-8-1979 filed Civil Suit No,661 of 1979 for declaration, perpetual and mandatory injunction before the Honourable High Court of Sindh at Karachi. The High Court through an ad-interim injunctive order
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restrained the defendants from dispossessing the plaintiff and interfering with his enjoyment of the suit-land. The ad-interim order was confirmed on 22-11-1981. Application of the respondent Government functionaries for vacation of the injunction was dismissed on 14-5-1985. 3. During pendency of the suit, the original plaintiff died on 22-6-1989. He was survived by the petitioners and respondent No,16 etc. i,e, his children from his first pre-deceased wife i,e, Mrs. Kulsoom Bibi and respondents Nos.1 to 8 i,e, his children from his second wife namely Mrs. Hafeezun-Nisa (hereinafter respectively referred to as the first set of LRs and the second set of LRs). The respondent No,17 also claimed to be legal heirs of Mr. M.A. Qureshi. 4. After death of the original plaintiff, the second set of LRs i,e, the respondents Nos.1 to 8 along with their mother Hafeezun-Nisa Qureshi, through application dated 24-8-1989 sought their impleadment in the suit as the plaintiffs but without mentioning the existence, the names and the right of first set of LRs, This application was allowed by Sindh High Court on 10-9-1989. The respondents Nos.1 to 8 and Begum Hafeezun-Nisa were substituted as the plaintiffs in the suit. (Begum Hafeezun-Nisa also died on 30-11-1996). 5. In the meanwhile Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Got the exchange of their private land with a part of the suit-land, approved from the then Chief Minister Sindh through orders dated 26-1-1992 and 17-2-1992 respectively. This exchange was in violation of stay order granted by the Court. On contempt petitions, the said exchange orders were recalled and respondent No,9 i,e,, Province of Sindh filed a statement dated 7-2-1995 confirming that the original allotment dated 10- 10-1963 in favour of the original plaintiff would remain in field on the original terms and conditions. Being aggrieved of these orders Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Filed Civil Suit No,709 of 1993 and C.P. No,D-830 of 1994 respectively. 6. In early 1996 through applications, the substituted plaintiffs i,e, respondents Nos.1 to 8 out of 250 Acres of the suit-land, sought to relinquish their claim on about 24 Acres and about 114 Acres respectively, in favour of Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Through orders dated 9-7-1996 and 16-10-1996 these applications for the abandonment/ relinquishment of claim on part of the suit-land were allowed by the Court. 7. An amended plaint was therefore filed by respondents Nos.1 to 8 but again without mentioning or impleading the first set of LRs of the original plaintiff. 8. On 26-7-1999, allegedly on gaining knowledge, Mrs. Afroze Shah and Mst. Mumtaz (of the first set of LRs) applied to be impleaded as the plaintiffs along with respondents Nos.1 to 8 (the second set of LRs) who did not file contesting reply or counter affidavit to oppose this application. Through order dated 29-11-1999 Court allowed this petition for impleadment of petitioners but as the defendants in the suit. They sought review of this order and prayed for their impleadment as the plaintiffs instead of the defendants. The Court by order dated 9-2-2000 without ruling on the entitlement of the petitioners to be impleaded as the plaintiffs, ordered to implead Khalid Qureshi and Muhammad Hussain Qureshi (of first set of LRs) also as the defendants in the suit. 9. On 24-4-2006, petitioners filed applications i,e, (i) For amendment of plaint under Order VI, Rule 17, C.P.C; (ii) For their transposition as plaintiffs under Order I, Rule 10, C.P.C. ' The above applications remained pending decision by the trial Court. 10. On 4-11-2006 petitioners as defendant Nos.8 and 10 filed an application under Order XII Rule 6 read with section 151, C.P.C. For a decree on the basis of government's statement dated 7-2-1995. This application also remained pending adjudication by the trial Court. 11. The suit thus continued though on enhancement of the pecuniary jurisdiction of the High Court, this suit had been transferred to the civil Court vide order dated 10-4-2006. 12. On 3-2-2007 respondents Nos.1 to 8 as the plaintiffs filed an, application, for withdrawal of the suit with leave to file a fresh suit for the reasons of:--
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(a) Formal defects; (b) Change in ground realities; (c) Abandonment by them as the plaintiffs of part of the claim on the suit-land; (d) Absence of conflicting claims of the suit parties; and (e) Complications; 13. However, on 9-3-2007, Advocate of the plaintiffs (respondents Nos.1 to 8) filed a statement to seek unconditional withdrawal of the suit instead of withdrawal with leave to re-file the suit. 14. The petitioners through a detailed reply and counter affidavit contested request for withdrawal of the suit on the grounds of:-- (0 Being co-owners of the lease hold rights of the undivided suit-land as LRs of the late A.M. Qureshi; (ii) Withdrawal being prejudicial and injurious to their legitimate interests and rights; (iii) Withdrawal being mala fide and conspiratorial; (iv) Pendency of their applications including for a decree and also for transposition as the plaintiffs in the suit on the basis of Central Government v. Suleman Khan and others (PLD 1992 SC 590) as both sets of LRs of A.M. Qureshi had equal right to inherit the suit-land measuring 250 Acres; (v) Relinquishment of 138 Acres; a substantial part of the land and withdrawal of the suit being sequentially collusive, defeative of the vested rights of the petitioners and to cause them irreparable injury; and (vi) Adjudication of suit be made on merits on substitution of respondents Nos.1 to 8 as the defendants for their request to withdraw the suit and transposition of the petitioners as the plaintiffs thereof. 15. By order dated 24-3-2007, the learned trial Court, dismissed the suit as withdrawn in a routine matter holding the objections in the counter affidavit of the petitioners as without substance but without adverting to, dealing with or deciding the objections stating that none appeared for the petitioners. 16. The petitioners filed a revision petition before 1st Additional District Judge, Malir, Karachi against the above order of the trial Court. The revision petition was disposed of by order dated 26-7-2007 by the revisional Court holding that:- (i) since the suit was filed by respondents Nos.1 to 8, (erroneous assumption) therefore their application for withdrawing the suit was rightly allowed by order dated 24-3-2007 by the trial Court. (ii) Petitioners may file a fresh suit within 30 days of the order. 17. The petitioners filed Constitutional Petition No,D-1620 of 2007 before the Sindh High Court against the above said orders. A learned Division Bench of the High Court dismissed this petition through the impugned judgment dated 10-9-2008. 18. After detailed narration of above facts Mr. Wasim Sajjad learned Senior Advocate Supreme Court for the appellants emphasized that chronological narration of facts ipso-facto disclosed mala fides of respondents Nos.1 to 8 whose object was to deprive the appellants etc. Of their share in the property and to injure them for being the children of the first wife of late M.A. Qureshi. Further that non-disclosure of the existence and names of the first set of L.Rs, by respondents Nos.1 to 8 at various stages was with object to keep them out of inheritance hence the clandestine relinquishment of claim over substantial piece of the suit-land as well as illegal mala fide and unnecessary withdrawal of the suit to protect the unlawful abandonment of claim of part of the suit-land. Also stated that on the above grounds the learned trial Court as well as other Courts should have declined unconditional withdrawal of the suit and should have interposed the first set of LRs as the plaintiffs and the second set of the LRs as the defendants. Reliance was place upon the case of PLD 1992 SC 590/591, PLD 2003 SC 979, PLD 2002 SC 1111 and 2004 SCMR 948.
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19. Mr. Rashid A. Rizvi, learned Senior Advocate Supreme Court appearing for respondents Nos.1, 3 and 4 contended that respondents Nos.1 to 8 being plaintiffs of the suit had unconditional right to abandon their claim on part or the whole of the suit-land and also to withdraw the suit. Further that it was not a suit for administration where one or the other set of LRs, could be interposed in place of each other. As respondents Nos.1 to 8 had opted to unconditionally withdraw their suit therefore Court had no jurisdiction to decline such withdrawal. Further contended that before the unconditional withdrawal of the suit, respondents Nos.1 to 8 had filed their fresh suit for the reduced suit-land i,e, 112 acres after abandoning their claim over 138 Acres of the suit-land. And provisions regarding preclusion under Sub-Rule 3 of Rule 1 of Order XXIII, C.P.C. Did not apply. And the freshly filed second suit was pending before the Sindh High Court at Karachi. Also that the petitioners had also filed suit after the judgment of the Additional District Judge wherefor they were estopped from challenging the unconditional withdrawal of the original suit. He emphasized that only petitioner No,1 had challenged the withdrawal in revision/writ and now only two out of four LRs, from the first set of LRs were before this Court. He referred PLD 1983 SC 344/350, PLD 1977 Karachi 933/936 and PLD 2004 SC (Azad Jummu and Kashmir) 1. He also contended that the first set of LRs having been correctly impleaded as defendants and also losing their review application could not seek transposition thereof as plaintiff. ' He conceded that the first set of L. Rs, was the children of the late A.M. Qureshi and was entitled to inherit from his estate but contended that they had no right to challenge the relinquishment of part of the land by the second set of LRs and that they were entitled to prosecute the suit only to the extent of 112 Acres. 20. Mr. Munir A. Malik, learned Advocate Supreme Court for respondents No,5, 7 and 8 supporting the submissions of Mr. Rashid A. Rizvi added that first set of L.Rs, cannot make the second set of L.Rs, as hostage to their will and choice in prosecuting the original suit. He further stated that first set of LRs together having four shares in all were entitled to at maximum 56 Acres of land while the second set of LRs, held 14 shares and were thus entitled to 194 Acres of land, therefore, relinquishment of 138 Acres by the respondents Nos.1 to 8 as plaintiffs be treated to have been abandoned from their own share of the suit-land without affecting the share ratio or entitlement 'of the first set of LRs, And that the suit was chose in action and the right thereto was heritable. He also placed reliance upon the case of (PLD 2003 SC 979/991) to contend that it is only in case of fraud or misrepresentation etc. That unconditional withdrawal could be declined. Also insisted that on relinquishment of the part of their share by respondents Nos.1 to 8 as plaintiffs, the first set of LRs/petitioners could litigate only for the remaining land and not more. 21. Raja Abdul Ghafoor, learned Advocate Supreme Court appearing for respondent No,9 supported the statement filed by the official respondents before the learned trial Court in the suit and thus rested his case. 22. Learned Advocate Supreme Court appearing for cooperative Societies supported their representations made before the trial Court. 23 The learned Advocate Supreme Court appearing for respondent No,6 namely Altaf Qureshi from the second set of the LRs and a plaintiff, clearly and categorically stated that respondent No,6 as a plaintiff' in the suit, he neither filed any application or affidavit for withdrawal of the suit nor did he sign any such application or affidavit nor did he instruct or agree to such withdrawal. And that the order of the withdrawal was illegal, mala fide and wrong. Further that application of withdrawal was purported to be for all the plaintiffs i,e, respondents Nos.1 to 8 but affidavit along therewith was only filed by one plaintiff which proved that he did not participate in the withdrawal proceedings. He thus joined the petitioners to seek setting aside the order of withdrawal of the suit and for revival of the original suit.
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24. Mr. Rashid A. Rizvi, Seniorr Advocate Supreme Court and Mr. Munir A. Malik, Senior Advocate Supreme Court for respondents however after Full Arguments offered that their clients were ready to concede to setting aside of the order of withdrawal and restoration of the suit and interposition of the First Set of LRs as the plaintiffs of the original suit provided that the claim relinquished / Abandoned by respondents Nos.1 to 8 as the plaintiffs over 138 acres of the suit-land be kept undisturbed and the petitioners agree to prosecute the case for remaining 112 acres of the land only. ' This offer was not accepted by the petitioners. 25. Heard the learned Advocates Supreme Court for the parties. Record examined. Facts herein involved have concisely been recounted above to bring out the litigated questions arising before us in the peculiar perspective of the present case. 26. The original suit was filed for declaration, perpetual injunction and mandatory injunction by late Mr. A. M. Qureshi (the original plaintiff) against Deputy .Commissioner (East), Government of Sindh in the Revenue Department, KDA, Karachi Water Management Board, Capital Co-operative Housing Society and Commissioner of Karachi. The cause of action was stated to have arisen on 20-7-1979 when Deputy Commissioner (East) Karachi threatened to eject the original plaintiff by use of force and the other defendants acted thereunder. Decree of declaration was sought qua subsistence of lease of 250 Acres of suit land in favour of the original plaintiff. Perpetual injunction was prayed for restraining the defendants from interference in or disturbance of original plaintiff's possession thereof. Mandatory injunction was requested against Karachi Water Management Board for supply of water to the project. 27. The original suit was principally against the Government, its agencies and functionaries to protect the plaintiff's title to the lease hold rights of the suit land and his possession thereupon. 28. Since initiation of the original suit in 1979 till date, despite repeated amendments and multiple proceedings for 30 years, the basic nature, structure and character of the subject-matter of the suit continued to be the same i,e, protection and preservation of the plaintiffs' lease hold and possessory rights in the suit land as against the invasion of the original defendants and those claiming under them either denying or interested to deny the title or right of the original plaintiff. Sections 42, 54 and 56 of the Specific Relief Act were invoked for a decree of declaration, perpetual and mandatory injunctions to prevent breach of defendants obligation (if established) existing in favour of the plaintiff against the purported invasion or threat of invasion by the defendants to plaintiff's right to and enjoyment of the suit property and to compel performance by such defendants of the their respective obligations. The long drawn legal battle of the original plaintiff and the substituted plaintiffs was essentially thus against the above referred defendants. 29. The matter reaching this Court does not involve adjudication of the above said main cause or its merits. The litigated questions before us involve issues arising collaterally and on trivialities between LRs of the original plaintiff i,e, late Mr. A.M. Qureshi. Non-disputes have been enlarged into un-necessary disputes by the two sets of LRs of the original plaintiff who are not pitched against each other on the real subject-matter of suit qua lease, it revival and preservation. 30. During pendency of the suit, the original plaintiff died on 22-6-1989. As above detailed, he was survived by two sets of LRs, The second set of LRs i,e, the respondents Nos.1 to 8 along with their mother Hafeezunisa Qureshi; on their application, were substituted as the plaintiffs in the suit (Begum Hafiz-un-Nisa also died on 30-11-1996). In early 1996, the substituted plaintiffs relinquished their claim on about 138 Acres of the suit land respectively in favour of Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Through orders dated 9-7-1996 and 16-10-1996 these applications for the relinquishment of claim on part of the suit land were allowed by the Court. An amended plaint was therefore filed by respondents Nos.1 to 8 but again without mentioning or impleading the first set of LRs of the original plaintiff.
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31. On 26-7-1999, allegedly on gaining knowledge, Mst. Afroze Shah and Mst. Mumtaz (of the first set of LRs) applied to be impleaded as the plaintiffs along with respondents Nos.1 to 8 who did not oppose/contest the request. The Court however by order dated 29-11-1999 impleaded petitioners/first set of LRs as the defendants in the suit. Their review thereagainst was also disposed of. The petitioners etc. On their impleadment asserted their right, being co-owners in the lease hold rights of the entire suit land, to the relinquished 138 Acres of land as well. Hence the inter se disputes between the said two sets of LRs of the original plaintiff i,e, late Mr. A.M. Qureshi aggravated on issues as well non-issues. 32. Ostensibly to save their above transaction of relinquishment of 138 Acres of the suit land, respondents No,1 to 8 as the plaintiffs unconditionally withdraw the suit which was accordingly dismissed as discussed in paras. 8 to 10 above. On this unconditional withdrawal, petitioners felt legally and factually injured as the co-owners in the lease hold rights of the un-divided suit land. They challenged trial Court's order allowing the unconditional withdrawal of the suit by respondents Nos.1 to 8 firstly in revision and then in a constitutional petition. Having lost the said proceedings, the present leave petition was filed for out consideration. 33. We note that none of the contending sets of LRs deny each others vested rights in the inheritance of the estate of the original plaintiff or their respective share proportions. They are not at variance on their respective rights and interests in the suit property. They also do not allege invasion, breach, denial or threat to their respective rights to inheritance under "Mohammadan Law". They in fact expressly admit each other's rights and shares as the LRs of the original plaintiffs. They are as such equal in status and identical in position. They are at par. None claims or contends superiority of right over the other. 34. Despite this equality, respondents Nos.1 to 8 as the substituted plaintiffs vainly tried to gain some edge over the LRs of the original plaintiff from his first wife Mst. Kulsoom Bibi. On death of the original plaintiff, they opted not to disclose the existence and names of the first set of LRs for impleadment along with them as parties to the suit. During prosecution of the suit, respondents Nos.1 to 8 as the substitute plaintiffs unilaterally abandoned their claim on 138 Acres of the suit property under some arrangement (not filed) with Mst. Murad Bibi etc. And Mst. Noor Bibi etc. Who were strangers to the family and the suit. Thereatter they as plaintiffs sought conditional withdrawal of the suit but then on filing a fresh suit only for the remaining 112 Acres of land unconditionally withdrew of the original suit. These acts of the said respondents were incompatible with equal co-existence and parity of rights of the two sets of the LRs; both of whom had become co-owners in the estate of the deceased Mr. A. M. Qureshi. These actions were palpable invasion and breach of the vested rights of the petitioners and thus naturally caused legal, factual and social injury to them. 35. We believe that the petitioners legitimately claim to have gained vested rights in the suit proceedings as well as the suit property whereabout the Government etc. Made positive representations, concessions and admissions. Further that the diverse litigation undeniably produced consequences for and against the suit parties and between the two sets of LRs of the original plaintiff. During the suit respective claims were firmly setup, conclusively pleaded, elaborately evidenced and finally positioned by the parties. Thirty years complex and contentions litigation during trial, appeals and petitions etc. Crystallized into orders, judgments, processes and proceedings that injuncted, protected, preserved and defined undertakings, rights, interests and status of all.Under these circumstances we agree with Mr. Wasim Sajjad, Senior Advocate Supreme Court for the petitioners that absolute right of the plaintiffs to un-conditionally withdraw the original suit was exercised with mala fides intended to defeat the valuable rights of the first set of the LRs i,e, the petitioners etc. And such withdrawal of the suit should not have been permitted.
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36. Withdrawal of a suit conditionally or unconditionally is provided for in Rule 1 of Order XXIII of Civil Procedure Code 1908. These provisions allow unconditional withdrawal of the suit or abandonment of part of the claim by a plaintiff under sub-rule (1) of Rule (1) of Order XXIII. Conditional withdrawal for the reasons of 'formal defect' or 'other sufficient grounds' with permission to file a fresh suit for the subject-matter of the suit is governed by sub-rule (2) of Rule (1) of Order XXIII, C.P.C. Sub-Rule (3) thereof provides that where the plaintiff withdraws a suit un-conditionally under sub-Rule (1) ibid or withdraws from a suit or abandons part of the claim, without Court's permission under sub- rule (2) ibid, he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Under sub-rule (4) Court has no jurisdiction to permit one of the several plaintiffs to withdraw without consent of the others. 37. In both the above situations i,e, under sub-rule (1) and (2) the suit terminates. The consequences however are different. Under sub-rule (1) read with sub-rule (3), on unconditional withdrawal of the suit, the plaintiff loses the right to file a fresh suit on the same subject-matter or claim. Upon withdrawal with leave under sub-rule (2), the plaintiff can institute a fresh suit in respect of the subject-matter of the same suit or claim. 38. In this case respondents Nos.1 to 8 as the plaintiffs initially sought withdrawal of suit with permission to re-file the suit but after filing a fresh suit for part of the suit land, the original suit was sought to be unconditionally withdrawn under sub-rule (1) of…
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